Land and Environment Court of New South Wales CITATION : MGB Developments v Parramatta City Council [2008] NSWLEC 51 APPLICANT MGB Developments Pty Limited PARTIES : RESPONDENT Parramatta City Council FILE NUMBER(S) : 10984 of 2007 CORAM: Brown C KEY ISSUES: Development Application :- construction of a multi unit housing development - bulk,scale - streetscape LEGISLATION CITED: Environmental Planning and Assessment Act 1979 DATES OF HEARING: 6/02/08 DATE OF JUDGMENT: 12 February 2008 APPLICANT Mr M Seymour, barrister SOLICITORS Matthews Folbigg Pty Ltd LEGAL REPRESENTATIVES: RESPONDENT Mr P Marincowitz, solicitor SOLICITORS DLA Phillips Fox JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Brown C 12 February 2008 10984 0f 2007 MGB Developments Pty Limited v Parramatta City Council JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal of Development Application DA 1140/2006 by Parramatta City Council (the council) for the construction of a multi unit housing development at 425 Wentworth Avenue, Toongabbie (the site). The site and surrounding area 2 The site has a western street frontage to Wentworth Avenue of 41.6 m, an eastern rear boundary of 40.285 m, a northern side boundary of 60 m and a southern side boundary of 49.43 m giving a total site area of 2203.3 sq m. 3 The land is currently vacant with no significant trees. There is a slight fall from the Wentworth Ave frontage to the rear of the site. The area is predominantly residential in nature with a mix of older style single dwelling residential development, multi unit housing development and dual occupancy development. The proposal 4 The proposal provides for a total of nine townhouses. The townhouses are to be constructed in two rows, each running parallel with Wentworth Avenue. The row of townhouses closest to Wentworth Avenue provide for 4 x 3 bedroom two-storey townhouses in two groups of two townhouses with a central drive way providing access to the rear row of townhouses. The two most northerly townhouses (Units 1 and 2) have garages with access from the central driveway rear whereas the two southerly townhouses (Units 3 and 4) have access directly from the Wentworth Avenue. 5 The rear row of townhouses comprises 5 x 3 bedroom townhouses in a single group. The most northerly townhouse ((Unit 5) and the most southerly townhouse (Unit 9) are single storey but with attic accommodation within the roof space. The central townhouses in this row (Units 6, 7 and 8) are two-storey construction. The relevant planning controls 6 The site is zoned Residential 2(b) under Parramatta Local Environmental Plan No 2001 (LEP 2001). The proposed use is permissible with consent within this zone. Clause 20 provides requirements for noise and vibration, and cl 39 provides requirements for height in residential zones. 7 Parramatta Development Control Plan 2005 (DCP 2005) applies. Clause 3.1 provides requirements for multi unit housing and relevantly height and street setback. Clause 4.1.7 provides requirements for development on sloping land, cl 4.2.1 provides requirements for streetscape, cl 4.2.4 provides requirements for building facades and articulation, cl 4.2.5 provides requirements for roof design, cl 4.3.2 provides requirements for visual and acoustic privacy and cl 4.3.4 provides requirements for solar access. The issues 8 The council filed a Statement of Facts and Contentions that identified 17 areas of dispute. The issues relating to car parking and access, tree protection, BASIX certificate, noise and vibration, water sensitive design and traffic were not pressed following the preparation of amended plans and/or further conditions of consent. The areas that remain in dispute are: 1) whether the two-storey construction of the rear row of townhouses is acceptable considering the height, bulk and scale and massing, 2) whether streetscape is acceptable considering the proposed street setbacks, 3) whether unacceptable levels of overlooking occur from the proposed patios into the adjoining courtyard areas 4) whether Unit 2 has unacceptable levels of solar access to its living areas, and 5) whether Unit 4 has unacceptable levels of overshadowing to its private open space areas. The evidence 9 Town planning evidence was provided by Mr Nigel White for the applicant and Mr Jonathan Goodwill for the council. Mr White and Mr Goodwill provided a joint report. 10 No residents provided evidence on site however there was one letter of objection when the development application was advertised. The objection was from the owner of 423 Wentworth Avenue who raised issues relating to height, overshadowing and non-compliance with the requirements of DCP 2005. Two-storey construction of Units 6, 7 and 8 11 Clause 3.1 of DCP 2005 provides for a preliminary building envelope. For multi unit housing, cl 3.1 of DCP 2005 relevantly provides the following requirements: Height Maximum 2 storeys and maximum building height 11m, within a building envelope determined by projecting a plane at 45° from the ceiling level of the uppermost storey. Exceptions: Maximum 1 storey (attic may be permitted) and Maximum building height 8m, within a building envelope determined by projecting a plane at 45° from the ceiling level of the uppermost storey. This applies to: + Row(s) or other arrangements of townhouses that are situated to the rear of townhouses at the street frontage (eg a second row of townhouses). + A row of townhouses that predominantly faces the side boundary rather than the street, for that part of the building that is not within the first 20m of building length (ie the first 20m is permitted to be 2 storeys and the building is then required to step down to 1 storey) These exceptions do not apply if the row of townhouses has frontage to a road, lane, public reserve or land zoned Residential 2(c) or 2(d). In such cases, 2 storeys and a maximum building height of 11m may be permitted. 12 Mr White states that the ridge height varies over the rear row of townhouses between 8.4 m and 8.8 m. When compared to the maximum height limit of 8 m, the extent of variance is minor relative to the site context and the suitable distance from adjoining dwellings. The proposed height does not give rise to any significant overshadowing of adjoining properties and privacy can be reasonably maintained. 13 Mr Goodwill states that the variation to the height requirement is not acceptable, particularly when there is no justification as to why the development cannot be amended to comply with the height control. The overall bulk of the building is significantly greater than a single storey with attic, as required by DCP 2005. 14 The issue relating to the height and form of the rear row of townhouses was the significant issue in the proceedings. In balancing the evidence of Mr White and Mr Goodwill, I agree with the conclusions reached by Mr Goodwill. While the two-storey component of the rear row of townhouses does not raise any significant issues in relation to loss of privacy and overshadowing, I accept Mr Goodwill's evidence that the basis for the single storey plus attic requirement extends beyond just the physical amenity considerations but also goes, importantly to the question of character, bulk and scale. 15 I agree with Mr Goodwill that the form of development proposed in this application is inconsistent with the form and character anticipated by DCP 2005. It is clear that the council made a conscious effort, in the preparation of DCP 2005, to create a single storey character at the rear of multi unit developments. There was no dispute that the two-storey component of the rear row of townhouses breaches of the height and envelope controls for multi unit housing on the eastern elevation. While there was disagreement between Mr White and Mr Goodwill on the applicability of the of the envelope controls to the western elevation of the rear row of townhouses, the diagram to cl 3.0 of DCP 2005 would tend to support Mr White's interpretation. In any event, this elevation is internal to the site and it does not directly impact on character, bulk and scale when viewed from outside the site. 16 I am not satisfied that Mr White's evidence that a single storey dwelling would have a similar bulk and scale to the proposed development can be accepted, particularly as no details were provided to support his proposition. In the absence of any evidence to the contrary it would be reasonable to assume that a single storey townhouse, even with attic accommodation, will have a lesser impact in terms of the bulk and scale than a two-storey development even though the overall heights may be similar. 17 Mr Seymour submitted that the principle controls in cl 3.1 for multi unit housing are a maximum of two storeys and a maximum building height of 11 m. The restriction to single storey comes about only as an exception to this requirement. As I understand, the submission suggests less weight should be given to the exceptions in cl 3.1. In my view, and even though the construction of cl 3.1 makes exceptions to the principal controls, this does not alter the clear intent of the height requirement for multi unit housing, in that there is a maximum one storey plus attic limit for rows of townhouses situated to the rear of townhouses at the street frontage. Clearly, the requirements for height for multi unit development must be read as a whole rather than as separate components. 18 Mr Seymour also submitted that as zone objective (b) is "to encourage redevelopment of low density housing forms, including…. multi unit housing…" then this should be the starting point for any consideration. He described the zone objective as "an ambitious objective". Mr Seymour's submission is not without merit but even though the objective is to encourage redevelopment, any consideration cannot be done in the absence of an assessment against the detailed provisions in DCP 2005. 19 In my view, the breaches of the height and envelope controls create such unacceptable levels of bulk and scale to that anticipated by DCP 2005 that the appeal should be dismissed and the development application refused. 20 For completeness I will briefly deal with the other issues. Streetscape/front setback 21 Clause 3.1 of DCP 2005 relevantly provides the following requirements for street setbacks: Street Setback Rectilinear areas* Is to be consistent with the prevailing setback along the street within the range of 5-7m Secondary Street/lane: 3 - 5m Curvilinear areas* Is to be consistent with the prevailing setback along the street within the range of 7 -10m Secondary street/lane: 5 - 7m Basement carparks are not to extend beyond the building envelope into the front setback 22 The minimum front setback varies for the two groups of two townhouses at the frontage of the site. The minimum set back for Units 3 and 4 is 5.5 m (excluding of the porch) while the minimum setback for Units 1 and 2 is 6.8 m. 23 Mr White maintains that the setback of 5.5 m falls within the acceptable range of 5 m - 7 m in DCP 2005. Mr Goodwill disagrees and states that as the prevailing street setbacks are significantly greater than 7 m, the setback for Units and 3 and 4 should be increased to the maximum 7 m. 24 An inspection of Wentworth Avenue near the site was undertaken and revealed a range of housing types and setbacks. The majority of dwellings were older style single storey dwellings with a varied setbacks but the majority in excess of 7 m. More recent developments, including higher density developments, provided setbacks of around 7 m. There was no consistent set back for any dwellings given the front boundary is not perpendicular to the side boundary and that most dwellings were positioned perpendicular to the side boundary. 25 In this case, it is appropriate that greater weight should be given to the more recent developments in determining an appropriate front street setback. I am satisfied that a consideration of "the prevailing setback along the street" should see a greater setback than 5.5 m for Units 3 and 4, although not necessarily to the extent suggested by Mr Goodwill. A setback of around 6.0 m– 6.5 m that is closer to the higher end of the 5 m - 7 m range would be appropriate given the flexibility provided by DCP 2005 and the irregular shapes of the lots that provide the for greater setbacks for different parts of the buildings and consequently greater opportunity for additional landscaping. Overlooking, solar access and overshadowing 26 The issues of internal overlooking, the inadequate solar access to the living areas of Unit 2 and overshadowing of the private open space areas of Unit 4 are not matters, in my view, that would support the refusal of the development application individually or collectively, putting aside the other issues. 27 Potential overlooking between units could be adequately addressed through additional screening and landscaping and the variations to the DCP 2005 requirements for solar access to Unit 2 and overshadowing to Unit 4 are not significant and are unlikely to unacceptably impact on the amenity of these units to any meaningful extent. Orders 28 The orders of the Court are: 1) The appeal is dismissed. 2) Development Application DA 1140/2006 for the construction of a multi unit housing development at 425 Wentworth Avenue, Toongabbie is refused. 3) The exhibits are returned. _____________ G T Brown Commissioner of the Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.